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Jewish perspectives on bioethics: Questioning certainties

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David Shabtai
Rabbi David Shabtai, MD is the Rabbi of the Sephardic Minyan at Boca Raton Synagogue and the author of Defining
… [More]the Moment: Understanding Brain Death in Halakhah [amzn.com/0615560482]. All opinions are his own. [Less]

A little while ago, another case of a brain dead patient waking up made the medical news rounds.

Brain death is supposed to describe a patient whose brain is so completely devastated, that they are irreversible unconscious, cannot control even their most basic reflexes, and cannot breathe on their own. Nonetheless, although quite rare, this is certainly not thefirsttime somebody previously diagnosed as brain dead was later found to be still alive.

This is about more than just a potential misdiagnosis. Since most legal jurisdictions throughout the world recognize brain death as the death of the individual, this means that somebody who was presumed to be dead was actually alive. A doctor likely diagnosed the patient as dead and later found out that he or she was severely mistaken. What really happened is hard to know, since considering the embarrassment for the hospitals and physicians involved, the parties often work out an out of court settlement that keeps the technical details of the case from ever reaching the public sphere.

What’s at stake thought is more than just a little embarrassment over a misdiagnosis; after all, mistakes do happen. Here however, the misdiagnosis can spell the difference between life and death. Since most legal systems consider brain dead patients dead, these patients either serve as organ donors, or if unable or unwilling to do so, have all life support systems removed. Considering that the patient is presumed to be dead, harvesting his heart or any life supporting organs should be innocuous. If the diagnosis was mistaken however, and the patient is actually alive – and even if just barely so – then either option has actively caused his death. While we may tolerate some diagnostic uncertainty in other areas of medicine, it is a result of a calculated balance between potential risks versus benefits. Here though, the patient in question bears all the risk and experiences no benefits – we can’t tolerate any diagnostic ambiguities.

The pundits are quick to pass judgment, noting that ‘in reality’ these patients never were actually brain dead – brain death after all represents irreversible damage to the brain and these patients’ brains clearly recovered [at least somewhat]. These cases are merely instances of physician error. And even while the technical details are unavailable, they attribute the error to either physician incompetence or not accurately following proper protocol in making the diagnosis. Based on what we know about neuronal physiology, it certainly makes good scientific sense.

The only problem is that in almost all cases, we can’t usually tell whether a diagnosis was accurate or mistaken until it’s too late – since the diagnosis itself (whether correct or mistaken) portends a hasty removal of therapy or transition to the operating room for organ donation. Even if physicians normally do a really good job at getting this right, mistakes are apparently being made. Let’s be clear – not many mistakes, but mistakes nonetheless.

Despite the headlines, it is probably safe to assume that virtually all brain dead people are in fact irreversibly so. Although a serious matter of debate in Jewish law, for those among us who accept brain death as the death of the individual, these patients are dead and are staying that way.

So what are we supposed to do with these stories? We can simply ignore them as extreme exceptions, confident in our diagnostic acumen to perform and interpret the necessary tests in proper and appropriate ways. Perhaps however, we could learn something from these cases – to always ask ourselves, are we doing enough?

Are we doing enough to insure that our diagnostic abilities are as thorough and complete as possible? Are we taking advantage of new technologies to better assist us in more accurately confirming these diagnoses? As of now, the answer hopefully is a resounding “yes” – but we need to take steps to make sure it stays that way.

When the Israeli Chief Rabbinate insisted on additional confirmatory testing for brain death diagnoses, the underlying motivation was a striving toward attaining further certainty in accurately diagnosing death. Even while some deemed additional confirmatory testing unnecessary, the Israeli medical establishment incorporated them into the recent Israeli organ transplantation law, broadening its consensus and acceptance amongst Israeli society.

Both determining what should constitute death as well as how certain we must be in our diagnostic ability are not questions of fact, but rather of value judgments. They are not medical questions, but rather fall to the purview of moral and ethical people to grapple with. It is we as a society who must feel comfortable with these decisions and – explicitly or implicitly – grant our legislative representatives the authority to craft policy on our behalf.

While today, we can answer affirmatively to “are we doing enough” in these areas – it is our responsibility to always keep asking the question. Doing so, will help ensure that we continuously strive toward living morally and ethically.

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